B-72184, MARCH 24, 1948, 27 COMP. GEN. 550

B-72184: Mar 24, 1948

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AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION B-61181 OF NOVEMBER 27. WHICH DEALS WITH THE FIXING OF INITIAL SALARY IN THOSE CASES WHERE AN EMPLOYEE IS TRANSFERRED. QUESTIONS HAVE ARISEN WHICH I SHOULD LIKE TO PRESENT FOR YOUR CONSIDERATION AND DECISION. CARRYING OUT THIS REDUCTION EMPLOYEES REACHED ON THE RETENTION REGISTERS WERE OFFERED AND THE EMPLOYEES ACCEPTED POSITION AT LOWER GRADES. VACANCIES HAVE OCCURRED TO WHICH SOME OF THE AFFECTED EMPLOYEES MAY NOW BE PROMOTED OR REEMPLOYED. WHICH ARE SPECIFIC EXAMPLES OF A NUMBER OF SIMILAR CASES: QUESTION NO. 1: ON JUNE 29. 403.60 WAS REDUCED TO FISCAL ACCOUNTANT CAF-10 $4. THE POSITION FROM WHICH HE WAS REDUCED IS NOW VACANT AND IT IS OUR INTENTION TO REASSIGN AND PROMOTE HIM TO THAT POSITION.

B-72184, MARCH 24, 1948, 27 COMP. GEN. 550

COMPENSATION - RATES - TRANSFERS, PROMOTIONS, DEMOTIONS, REINSTATEMENTS, OR REEMPLOYMENTS - SALARY ADJUSTMENT UPON APPROPRIATION AVAILABILITY IN THE CASE OF AN EMPLOYEE WHO, BECAUSE OF LIMITED FUNDS, HAS BEEN TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED IN A CLASSIFIED POSITION AT A RATE OF PAY LESS THAN THAT ATTAINED BY HIM IN A PRIOR POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, ADMINISTRATIVE ACTION MAY NOT BE TAKEN AT SOME LATER DATE AS FUNDS BECOME AVAILABLE TO INCREASE THE RATE OF PAY OF SUCH EMPLOYEE WITHIN THE SALARY RANGE PROVIDED BY LAW FOR THE POSITION, ALTHOUGH SUCH INCREASED COMPENSATION WOULD NOT EXCEED THE HIGHEST RATE OF PAY ATTAINED BY HIM IN ANY PRIOR POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. 26 COMP. GEN. 368, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 24, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 18, 1947, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION B-61181 OF NOVEMBER 27, 1946, WHICH DEALS WITH THE FIXING OF INITIAL SALARY IN THOSE CASES WHERE AN EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED. IN TAKING ACTIONS UNDER THE PROVISIONS OF THIS DECISION, QUESTIONS HAVE ARISEN WHICH I SHOULD LIKE TO PRESENT FOR YOUR CONSIDERATION AND DECISION.

DURING THE LATTER PART OF THE FISCAL YEAR 1947, DUE TO REDUCED APPROPRIATIONS, THE BUREAU OF ACCOUNTS EFFECTED A REDUCTION-IN-FORCE. CARRYING OUT THIS REDUCTION EMPLOYEES REACHED ON THE RETENTION REGISTERS WERE OFFERED AND THE EMPLOYEES ACCEPTED POSITION AT LOWER GRADES. SINCE EFFECTING THESE REDUCTIONS, VACANCIES HAVE OCCURRED TO WHICH SOME OF THE AFFECTED EMPLOYEES MAY NOW BE PROMOTED OR REEMPLOYED. BEFORE GIVING EFFECT TO THESE ACTIONS I WOULD APPRECIATE YOUR CONSIDERATION AND DECISION ON THE FOLLOWING QUESTIONS, WHICH ARE SPECIFIC EXAMPLES OF A NUMBER OF SIMILAR CASES:

QUESTION NO. 1:

ON JUNE 29, 1947, A FISCAL ACCOUNTANT CAF-11 $5,403.60 WAS REDUCED TO FISCAL ACCOUNTANT CAF-10 $4,776.60, DUE TO REDUCTION-IN-FORCE. THE POSITION FROM WHICH HE WAS REDUCED IS NOW VACANT AND IT IS OUR INTENTION TO REASSIGN AND PROMOTE HIM TO THAT POSITION. IN THE LIGHT OF YOUR DECISION B-61181 OF NOVEMBER 27, 1946 IT IS ASSUMED THAT WE MAY FIX HIS SALARY AT A RATE NOT TO EXCEED THE HIGHEST SALARY PREVIOUSLY EARNED IN ANY PRIOR GOVERNMENT POSITION. HOWEVER, DUE TO THE PRESENT STATUS OF FUNDS AVAILABLE UNDER APPLICABLE APPROPRIATIONS, IT IS NOT POSSIBLE TO MAKE THE PROMOTION TO A SALARY RATE IN EXCESS OF THE MINIMUM OF THE GRADE $4,902, NOTWITHSTANDING THE FACT THAT IT IS OUR ADMINISTRATIVE DESIRE TO RESTORE HIM TO HIS PREVIOUS SALARY IN THE GRADE. MAY THIS EMPLOYEE, THEREFORE, BE PROMOTED TO HIS FORMER POSITION AND GRADE AT THE MINIMUM SALARY AND, AT A LATER DATE--- PROVIDED THE CONDITION OF AVAILABLE APPROPRIATIONS PERMITS-- - ADMINISTRATIVELY INCREASE HIS SALARY IN THAT GRADE TO THE EXTENT OF WITHIN-GRADE ADVANCEMENTS WHICH HE HAD EARNED PRIOR TO REDUCTION ON JUNE 29, 1947? IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, MAY THE RESTORATION OF SALARY BE MADE RETROACTIVE TO THE DATE OF PROMOTION TO SUCH GRADE, OR MUST IT BE MADE EFFECTIVE AS OF A CURRENT DATE?

QUESTION NO. 2:

THE SAME CONDITIONS EXIST AS PRESENTED IN QUESTION NO. 1 ABOVE, WITH THE EXCEPTION OF SALARY INVOLVED. EMPLOYEE'S FORMER GRADE AND SALARY BEFORE REDUCTION-IN-FORCE WAS CAF-11 $5,152.80. HIS PRESENT GRADE AND SALARY IS CAF-10, $4,902. MAY THIS EMPLOYEE BE PROMOTED TO HIS FORMER POSITION AT GRADE CAF-11 AND HIS INITIAL SALARY FIXED AT THE MINIMUM FOR THE GRADE, $4,902 AND AT A LATER DATE--- PROVIDED AVAILABLE APPROPRIATIONS PERMIT--- MAY HIS SALARY IN THAT GRADE BE ADMINISTRATIVELY INCREASED TO THE EXTENT OF WITHIN-GRADE ADVANCEMENTS WHICH HE HAD EARNED PRIOR TO REDUCTION ON JUNE 29, 1947?

QUESTION NO. 3:

ON JUNE 30, 1947 A FISCAL ACCOUNTANT CAF-11 $5,403.60, WAS SEPARATED FROM THE SERVICE DUE TO REDUCTION-IN-FORCE. SUBSEQUENTLY, A VACANCY IN GRADE CAF-9 HAS OCCURRED TO WHICH HE MAY BE ASSIGNED. WITHIN THE MEANING OF YOUR DECISION B-61181 OF NOVEMBER 27, 1946 IT IS ASSUMED THAT HE MAY BE REEMPLOYED IN THE LOWER GRADE AT A SALARY NOT TO EXCEED THE HIGHEST SALARY EARNED IN ANY PRIOR GOVERNMENT POSITION (IN THIS INSTANCE NOT TO EXCEED THE MAXIMUM OF GRADE CAF-9). DUE TO THE IMMEDIATE STATUS OF APPROPRIATIONS MORE THAN THE MINIMUM SALARY CANNOT BE OFFERED. MAY THIS EMPLOYEE, THEREFORE, BE REEMPLOYED AND HIS INITIAL SALARY BE FIXED AT $4,149.60 AND, AT A LATER DATE--- PROVIDED THE CONDITION OF APPROPRIATIONS PERMITS--- HIS SALARY BE INCREASED ADMINISTRATIVELY TO A STEP WITHIN THE GRADE NOT TO EXCEED THE MAXIMUM?

EACH OF THE EXAMPLES PRESENTED INVOLVES FUNDAMENTALLY THE SAME QUESTION, I.E., WHETHER--- IN THE CASE OF AN EMPLOYEE WHO, BECAUSE OF LIMITED FUNDS, HAS BEEN TRANSFERRED, PROMOTED, DEMOTED, REINSTATED OR REEMPLOYED IN A CLASSIFIED POSITION AT A RATE OF PAY LESS THAN THAT PREVIOUSLY ATTAINED BY HIM IN ANY PRIOR POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- ADMINISTRATIVE ACTION MAY BE TAKEN AS FUNDS BECOME AVAILABLE TO INCREASE THE RATE OF PAY OF SUCH EMPLOYEE TO A RATE OF PAY PROVIDED BY LAW FOR THE POSITION AND WHICH DOES NOT EXCEED THE HIGHEST RATE OF PAY PREVIOUSLY ATTAINED BY HIM IN ANY PRIOR POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THAT QUESTION IS REQUIRED TO BE ANSWERED IN THE NEGATIVE. THAT CONNECTION THERE IS FOR NOTING THAT THE RULE STATED IN DECISION OF NOVEMBER 27, 1946, B-61181, 26 COMP. GEN. 368, SPECIFICALLY INCLUDED THE ELEMENT OF AVAILABILITY OF APPROPRIATIONS. SEE PAGE 372 OF THAT DECISION AS FOLLOWS:

IN VIEW OF THE FOREGOING, AND IN ORDER TO CLARIFY AND COORDINATE THE PREVIOUS DECISIONS RESPECTING THE SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, AND REINSTATEMENT, AND IN THE ABSENCE OF A STATUTE, OR REGULATION HAVING THE FORCE OF LAW, SPECIFICALLY CONTROLLING, THE GENERAL RULE PROPERLY MAY BE AMPLIFIED AND RESTATED AS FOLLOWS: WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, OR SEPARATED IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO PAY--- WITHIN AVAILABLE APPROPRIATIONS--- SUCH EMPLOYEE IN ANY CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED THE MINIMUM SALARY RATE OR POSITIONS OR SUCH HIGHER RATE WITHIN THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED BY HIM IN ANY PRIOR GOVERNMENT POSITION. * * * (ITALICS SUPPLIED.)

AS INDICATED, THE RULE MAY BE APPLIED ONLY SO FAR AS APPROPRIATIONS OR FUNDS MAY BE AVAILABLE. WHERE APPROPRIATIONS OR FUNDS ARE NOT AVAILABLE THE APPLICATION OF THE RULE MAY NOT BE POSTPONED AND GIVEN EFFECT AT SOME LATER DATE BY ADMINISTRATIVE ACTION. TO HOLD OTHERWISE WOULD RESULT IN AN AVOIDANCE OR OVERCOMING BY ADMINISTRATIVE ACTION OF THE PRESCRIBED WAITING PERIODS CONTAINED IN THE PROVISIONS OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299. CF. DECISION OF JULY 28, 1947, B-66833, 27 COMP. GEN. 27.